Citation NR: 9714259
Decision Date: 04/24/97 Archive Date: 05/01/97
DOCKET NO. 93-27 189 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased evaluation for residuals of a
shell fragment wound, right foot, to include a scar,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Associate Counsel
INTRODUCTION
The appellant (the veteran) had active service from April
1968 to April 1971. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida, which denied an increased
(compensable) evaluation for a shell fragment wound, right
foot, and which subsequently assigned a 10 percent evaluation
for a scar, right foot, effective from the date of claim in
April 1993. This claim returns to the Board following remand
in October 1995.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the residuals of a shell fragment
wound of the right foot are more disabling than the current
10 percent evaluation for a tender and painful scar reflects.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence supports a 20 percent rating for residuals of a
shell fragment wound of the right foot, to include scar.
FINDINGS OF FACT
1. The shell fragment wound to the dorsum of the right foot
caused severe muscle injury.
2. The residuals of a shell fragment wound to the dorsum of
the right foot are currently manifested by a painful scar on
the dorsum of the foot at the second metatarsal interspace,
pain with walking for prolonged periods and a right-sided
limp resulting in moderately severe foot injury.
CONCLUSION OF LAW
The criteria for a 20 percent evaluation, but no more, for
residuals of a shell fragment wound of the right foot, to
include a scar, are met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 1996); 38 C.F.R. §§ 4.47, 4.48, 4.49, 4.50,
4.51, 4.52, 4.53, 4.54, 4.55, 4.56, 4.71a, 4.72, 4.73,
Diagnostic Codes 5284, 5310, 7804 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran’s claim that his service-connected disability is
more severely disabling than reflected by the current 10
percent evaluation for a tender and painful scar is a well-
grounded claim within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991). The Board finds that all relevant records
necessary to adjudicate this claim have been associated with
the claims folder and that the duty to assist as mandated by
38 U.S.C.A. § 5107 has been met. This evidence is sufficient
in scope and depth for a fair, impartial and fully informed
appellate decision.
Service medical records that, in February 1969, during combat
with the enemy in Vietnam, the veteran sustained shell
fragment wounds to the extensor surface of the right foot.
There were comminuted fractures of the proximal phalanx of
the third digit and comminuted fractures of the second
metatarsal head. The wounds were debrided in the field, and
the shell fragments were removed a few days later. The wound
remained open and draining, and the veteran was hospitalized
in March 1969 for additional treatment, including debridement
and a split-thickness skin graft. The operative report
states that the wound was over the extensor aspect of the
third toe. Remnants of extensor tendon and bone were visible
in the granulating tissue of the wound. The wound was
described as totally healed in late April 1969, and the
veteran returned to full duty.
On VA examination conducted in June 1975, the veteran
complained that he had pulling in the area of a skin graft.
The examiner described a 1¾” scar on the dorsal surface of
the right foot at the base of the middle toe. The veteran
had full range of motion of all joints. No abnormality was
noted on radiologic examination.
On VA examination conducted in July 1993, the veteran
complained that his right foot was painful, primarily in the
area of the third metatarsal, whenever he stood for prolonged
periods. The veteran was able to rise on his heels and toes.
He had a large scar on the dorsum of the foot at the third
metatarsophalangeal (MP) joint, limitation of motion of the
third MP joint, and a right-sided limp. Radiologic
examination disclosed medial deviation of the third
metatarsal secondary to the previous fracture and spurring in
the right foot.
A private treatment notes dated in April 1996 reflected that
the veteran complained that his foot became swollen and
painful when he walked. No swelling was present. There was
pain on palpation of the second MP joint. Range of motion of
all joints in the foot was slightly limited. Pes planus was
noted. Radiologic examination disclosed possible joint
effusion in the second MP joint with widening of the second
MP head, indicative of osteoarthritic changes. An injection
into the joint reduced the veteran’s pain.
On VA examination conducted in April 1996, the veteran
complained of burning, numbness, and pain in his right foot
and heel. The veteran was hypersensitive throughout the
dorsum of the right foot. He had significant pain at the
scar area at the second interspace and there was partial
syndactylization (webbing) of the second and third toes. He
walked with a limp on the right. There was pain on palpation
of the second and third metatarsal heads, with both plantar
and dorsal palpation. Pedal pulses were palpable, equal and
regular, with no edema. Muscle strength was normal and
symmetrical in both feet. The examiner concluded that the
scar on the right foot was painful. Radiologic examination
disclosed early degenerative changes in the right foot, as
well as moderate pes planus bilaterally. There were no metal
fragments. The examiner concluded that the veteran had pain
in the right foot as the result of osteoarthritis, pes
planus, and residuals of surgery at the second interspace,
with possible scar tissue and nerve entrapment in the
interspace at the site of a skin graft scar.
In determining an appropriate evaluation for a disability, VA
applies a schedule of percentage ratings of reduced earning
capacity in civil occupations due to specific injuries or
combination of injuries. 38 U.S.C.A. § 1155; 38 C.F.R.
§ 4.1. Separate diagnostic codes identify the various
disabilities. Where entitlement to compensation has been
established, and an increase in the rating is at issue, the
present level of disability is of primary concern, even
though 38 C.F.R. § 4.2 requires the whole recorded history to
be reviewed in order to make an accurate evaluation, because
the regulations do not give past medical reports precedence
over current medical findings. Francisco v. Brown,
7 Vet.App. 55, 57 (1994). When evaluating a disability, any
reasonable doubt regarding the degree of disability is
resolved in favor of the claimant. 38 C.F.R. § 4.3. If
there is a question as to which of two evaluations should
apply, the higher rating is assigned if the disability
picture more nearly approximates the criteria required for
that rating. 38 C.F.R. § 4.7.
The residuals of the shell fragment wound are currently
evaluated as 10 percent disabling under 38 C.F.R. § 4.118,
Diagnostic Code 7804, for a tender and painful scar. The
veteran contends that his right foot is more disabling than
reflected by this evaluation.
The Board must consider whether an evaluation in excess of 10
percent is available under any other applicable diagnostic
code. Because the disability involved is a shell fragment
wound to the dorsum of the foot, the Board will consider the
disability under Diagnostic Code 5310, muscle injury to the
foot. Under Diagnostic Code 5310, slight muscle injury of
the dorsum of the foot is noncompensable. Moderate or
moderately severe muscle injury of the dorsum of the foot
warrants a 10 percent evaluation. Severe muscle injury
warrants a 20 percent evaluation.
The regulations provide much guidance in evaluating the
various degrees of impairment that may result from the
effects of missiles, including impairment involving scars,
deeper structures, muscle injuries, muscle weakness, muscle
damage, muscle patterns, and muscle groups. 38 C.F.R. §§
4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54, 4.55, 4.56,
4.72 (1995). The regulations set forth specific factors,
such as the type of injury, history and complaint, and
objective findings, to be considered in the evaluation of
disabilities residual to healed wounds involving muscle
groups due to gunshot or other trauma. 38 C.F.R. § 4.56
(1995).
The type of injury envisioned by the regulations as causing
slight disability of muscles is a simple wound of muscle
without debridement, infection or effects of laceration. 38
C.F.R. §§ 4.50, 4.56(a). In contrast, the type of injury
noted by the regulation as causing moderate disability of
muscles includes a through and through or deep penetrating
wound of relatively short track by a single bullet or small
shell or shrapnel fragment. In moderate disability, the
history may include evidence of hospitalization for treatment
of the wound, and objective findings include signs of
moderate loss of deep fascia or muscle substance or
impairment of muscle tonus, and of definite weakness or
fatigue in comparative tests. 38 C.F.R. § 4.56(b).
A history of compound, comminuted fracture together with
definite muscle or tendon injury establishes a severe grade
of injury, except in locations such as the wrist or over the
tibia, where damage to muscles might be minimal or damage to
tendons repaired by suture. 38 C.F.R. § 4.72.
Objective findings warranting a finding of moderately severe
disability of muscles include relatively large scars,
moderate loss of deep fascia or muscle substance, or evidence
of marked or moderately severe loss on tests of strength and
endurance of muscle groups. Severe injury may be established
by findings such as extensive ragged, depressed, and adherent
scars; multiple scattered foreign bodies; and moderate or
extensive loss of deep fascia or of muscle substance. 38
C.F.R. § 4.56.
In this case, the medical evidence shows that as a result of
the shell fragment wound, the veteran sustained compound
comminuted fractures of bones of the foot as well as definite
tendon damage. These facts establish that that the shell
fragment wound to the dorsum of the foot caused severe
disability of muscles as defined at 38 C.F.R. § 4.72, thereby
warranting a 20 percent rating under Diagnostic Code 5310.
The question then is whether a still higher rating may be in
order. According to the principles set forth in Esteban v.
Brown, 6 Vet.App. 259 (1994), when the symptomatology of the
conditions associated with a particular disability do not
overlap, separate ratings for each of the conditions is in
order. In this case, manifestations of the shell fragment
wound include an objectively tender and painful scar on the
dorsum of the foot and damage to the tendons and bones of the
dorsal foot. The Board has already determined that veteran
is entitled to a 20 percent rating for severe disability of
muscles; the question is whether he is entitled to an
additional 10 percent rating based on the objectively tender
and painful scar of the foot under Diagnostic Code 7804.
The Board does not find that the symptomatology of the scar
and the bone/tendon damage is distinct and separate; both
appear to affect essentially the same functions of the foot.
Accordingly, there is no basis to assign an additional and
separate 10 percent rating for the tender and painful scar.
The Board must also consider whether an evaluation in excess
of 20 percent for the shell fragment wound residuals would be
warranted under the criteria for foot injuries, 38 C.F.R.
§ 4.71a, Diagnostic Code 5284. Under that Diagnostic Code, a
moderate injury is 10 percent disabling, a moderately severe
injury is 20 percent disabling and a severe injury is 30
percent disabling. The Board does not find that, in this
case, residuals of the shell fragment wound currently cause
severe foot injury. The veteran has hypersensitivity over
the dorsum of the foot, particularly over the second and
third metatarsal head, and, as a result, walks with a limp.
He does not have weakness or other impairment in functions of
the foot affected by the shell fragment injury. The Board
concludes that he is entitled to a 20 percent rating, but no
more than a 20 percent rating, for the shell fragment wound
residuals.
ORDER
A 20 percent evaluation for residuals of a shell fragment
wound, to include a scar, is granted, subject to the criteria
which govern the payment of monetary awards.
(CONTINUED ON NEXT PAGE)
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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